STATE OF NEW JERSEY v. JOSE GOMEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSE GOMEZ,

Defendant-Respondent.

October 18, 2016

Argued September 28, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-01-0041.

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).

Peter T. Blum, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).

PER CURIAM

The State appeals the March 17, 2015 dismissal of an indictment charging defendant Jose Gomez with second-degree eluding, N.J.S.A. 2C:29-2(b). Defendant's motion seeking dismissal was granted based on double jeopardy grounds. We reverse and remand.

According to the police report filed in the matter, on August 17, 2013, at approximately 1:52 a.m., Belleville police officers noticed two motorcyclists parked in front of a bar. Both drivers sped away north on Union Avenue. The Belleville officers activated their lights and sirens, attempting to stop the vehicles; neither slowed down. The drivers turned and continued east on Park Avenue heading towards Nutley, but then defendant pulled over. As the officers parked behind defendant and exited their vehicle, he sped away again.

Once in Nutley, defendant was thrown off his motorcycle while attempting to pass a car on the right, sustaining injuries. He was treated on the scene by Nutley emergency services and taken to a local hospital. A Nutley police officer, who had coincidentally witnessed the accident, later issued motor vehicle tickets. Defendant's brief in the trial court states he travelled .8 miles in Belleville and .4 miles in Nutley.

Defendant was charged with eluding and careless driving in Belleville. In Nutley, he was charged with reckless driving, N.J.S.A. 39:4-96; failure to possess registration, N.J.S.A. 39:329; failure to possess an insurance card, N.J.S.A. 39:329; and improper passing, N.J.S.A. 39:4-85.

On September 4, 2013, nearly three weeks later, defendant entered a guilty plea in the Nutley Municipal Court, pursuant to a negotiated agreement with the municipal prosecutor, to unsafe operation of a motor vehicle, N.J.S.A. 39:4-97.2, and failure to possess an insurance card. Defendant was unrepresented and not in custody. He and the municipal court judge engaged in the following colloquy when the plea was entered

THE COURT: All right, let's see. So, he's recommending dismissal of the registration charge, insurance you're going to plead to, dismissal of the 485, amendment of the reckless to unsafe operation of a motor vehicle, right?

MR. GOMEZ: Yes.

THE COURT: You've pled to unsafe before, I see, it's your second time. Okay.

All right, so the date is August 17th. You were driving on Park Avenue in Nutley, correct?

MR. GOMEZ: Yes.

THE COURT: And did you operate the motor vehicle in an unsafe manner on that day?

MR. GOMEZ: Yes.

THE COURT: When the police officer pulled you over did you not have in your possession your insurance card? You weren't able to produce that, correct, on that day?

MR. GOMEZ: Yeah, I was in an accident. I wasn't able to produce it. I had it but I was unable to produce it.

THE COURT: Unable to produce, guilty.

I find you guilty of unsafe operation of a motor vehicle. $200, $33 in court costs, $6 State Assessment Fund, $250 to the DMV, that's $489 on that one. $186 on the insurance card charge.

The remaining two are dismissed.

COURT CLERK: Total of $675.

MR. GOMEZ: Yeah.

THE COURT: $675.

MR. GOMEZ: I'll pay it all right now.

On January 8, 2014, nearly five months later, defendant was indicted for second-degree eluding while in Belleville. He was also charged with careless driving, N.J.S.A. 39:4-97, in Belleville.

Defendant's motion to dismiss the indictment on double jeopardy grounds was initially argued on August 15, 2014. Before rendering a decision, the Law Division judge requested that counsel obtain the transcript of proceedings in the Nutley Municipal Court.

On February 23, 2015, having been provided with the transcript, the court ruled that double jeopardy principles mandated dismissal of the indictment. Because defendant's driving on the date in question involved "the same course of conduct as the motor vehicle charges to which he had pled guilty," and the incident covered less than two miles, the judge held that the eluding charge from Belleville could not be prosecuted as a result of defendant's motor vehicle pleas in Nutley.

On March 16, 2015, the court sua sponte in part reconsidered the February decision. In addition to dismissing the eluding, she then stated that third-degree failure to yield after being given a lawful order, N.J.S.A. 2C:29-2(b), which was not charged in the indictment, survived dismissal of the eluding offense. While acknowledging that there was no third-degree charge which would survive, the judge reiterated, however, that double jeopardy barred the State from proceeding on the eluding. This appeal followed.

In her decision, the judge distinguished State v. Colon, 374 N.J. Super. 199 (2005), a case we consider to be controlling. In Colon, the defendant had been charged with, among other things, second-degree eluding, driving while on the revoked list, N.J.S.A. 39:3-40, reckless driving, traveling the wrong way down a one-way street, N.J.S.A. 39:4-85.1, and leaving the scene of an accident, N.J.S.A. 39:4-129(c). Id. at 204.

After indictment, Colon appeared unrepresented in municipal court, and entered a guilty plea to driving while on the revoked list, reckless driving, traveling the wrong way down a one-way street, and failure to report an accident, N.J.S.A. 39:4-130. Id. at 205. No factual basis was elicited by the municipal court judge who accepted his guilty plea. Ibid. When asked for the reason he was dressed in county jail garb, Colon responded that he was being held on unrelated charges. Ibid.

In the Law Division, Colon entered a guilty plea to eluding after his motion to dismiss based on double jeopardy grounds was denied. Id. at 206-07. He then appealed the conviction. Id. at 209.

Colon enumerated and described at some length the several administrative policies and directives promulgated by the Administrative Office of the Courts establishing protocols when indictable charges and municipal court complaints are lodged, arising from the same incident. Id. at 210-11. The protocols are intended to prevent the mix-up in Colon's case. Ibid. Had proper procedures been followed, the municipal court judge would have known of the existence of the indictable charge. Ibid. The judiciary's efforts at ending the administrative confusion that occurred in Colon and in this case have been ongoing for at least thirty-four years. See State v. Dively, 92 N.J. 573, 589-90 (1983).

In Colon, we discussed at some length the two methods of analyzing double jeopardy questions, the "same conduct" or "same evidence" test established in Grady v. Corbin, 495 U.S. 508, 510, 110 S. Ct. 2084, 2087, 109 L. Ed. 2d 548, 557 (1990), and the "same elements" test established in Blockburger v. U.S., 284 U.S. 299, 303-04, 52 S. Ct. 18, 181-82, 76 L. Ed. 306, 309 (1932). Id. at 213-15. Deferring to our Supreme Court, we did not decide which test should be employed, but rather viewed defendant's proofs in light of the more restrictive Grady "same conduct" test, which was rejected in U.S. v. Dixon, 509 U.S. 688, 703-12, 113 S. Ct. 2849, 2859-64, 125 L. Ed. 2d 556, 572-78 (1993). Id. at 214. Our Court has interpreted our double jeopardy clause "to be coextensive with" the federal doctrine. Dively, supra, 92 N.J. at 578. The New Jersey Supreme Court has not revisited the issue despite the United States Supreme Court's later rejection of the Grady test and return to the Blockburger test.

The Blockburger test merely asks whether "each offense contains an element not contained in the other[,] if not, they are the 'same offense' and double jeopardy bars additional punishment and successive prosecution." Dixon, supra, 509 U.S. at 696, 113 S. Ct. at 2856, 125 L. Ed. 2d at 568. In rejecting the Grady test, Justice Scalia, Dixon's author, gave as an example a prosecution for felony murder based on robbery, followed by an indictment and prosecution for robbery with a firearm from the same incident. Id. at 710, 113 S. Ct. at 2863, 125 L. Ed. 2d at 577. Under the Blockburger test, Justice Scalia considered the charges to pass constitutional muster, although under Grady, they would not. Ibid.

In Colon, the conduct required to meet the statutory elements for eluding was not satisfied by the guilty pleas in municipal court to the motor vehicle offenses, thus we did not consider the double jeopardy bar to have been breached. Colon, supra, 374 N.J. Super. at 218.

We said: "[r]eckless driving can, of course, be proven by the same or fewer facts than those offered in the Law Division to establish the 'creation of a risk of death or injury to any person' that elevates eluding to a crime of the second degree." Ibid. In order to succeed on double jeopardy claims, a defendant would have to prove "the first prosecution encompassed all the facts utilized in the second." Ibid. Since no facts were elicited at all, Colon could not possibly carry his burden even under the same conduct standard. Ibid.

In this case, the abbreviated factual basis for defendant's guilty plea to operating his motor vehicle in an unsafe manner in Nutley did not establish the conduct necessary to meet the statutory elements of second-degree eluding while in Belleville. Defendant's unsafe operation in Nutley followed his driving in Belleville and flight from the Belleville police after receiving a signal to stop. During that flight he "created a risk of death or injury to another person."

Operating a motor vehicle in an unsafe manner, likely to endanger a person or property, does not necessarily include creating a risk of injury or death. Although the operation of a motor vehicle necessary for eluding is unsafe operation, not all unsafe operations rise to the level of creating a risk of injury or death. Unsafe driving can jeopardize property, for example, which would not suffice for an eluding charge. The facts necessary to convict defendant of eluding in Belleville are thus different in nature from the facts necessary to prove defendant's unsafe operation of his motorcycle while in Nutley.

The statute regarding unsafe driving states that "it shall be unlawful for any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property." N.J.S.A. 39:4-97.2. The nature of this conduct is of a far wider universe than that necessary in order to actually "create [] a risk of death or injury to another."

We also note that the eluding began in Belleville, and only that conduct is alleged in the indictment. That the two municipalities are adjacent, and that defendant crashed his vehicle shortly after entering Nutley is also inconsequential. Defendant's failure to comply with the officer's signal to stop, conduct requisite to prove eluding, occurred in Belleville, not Nutley.

At oral argument, defense counsel distinguished Colon, stating that under the Blockburger test, which he contended was the applicable analysis, there was a difference between the reckless charge and eluding, and this defendant's more comprehensive unsafe operation charge and eluding. We disagree that under either Blockburger or Grady, double jeopardy bars prosecution, or that any distinction exists between this case and Colon. We also note that in this case the factual basis for the charge of unsafe operation was so abbreviated as to be of no guidance in resolving the double jeopardy issue. The cases are similar in that respect as well.

Counsel also distinguished Colon by arguing that defense counsel's concession there that the charges passed the Blockburger test was not warranted, and was not being made here. In our view, the concession made in Colon was necessary because under Blockburger, the eluding offense was clearly not barred by double jeopardy.

In this case, unlike Colon, there were "divergent elements" both as to time, place, and proof. We also note that all the cases relied upon by defendant either predate Dixon or Grady, or are decisions from other jurisdictions.

The only post-Dixon case cited in defendant's brief, State v. Dillihay, 127 N.J. 42 (1992), addresses double jeopardy in a different context whether fourth-degree possession with intent N.J.S.A. 2C:35-59(a)(1) and 5(b)(12), third-degree possession within a school zone, N.J.S.A. 2C:35-7, and second-degree possession with intent, N.J.S.A. 2C:35-5(a)(1) and -5(b)(7), merged given the different sentences scheme for the offenses. The Supreme Court concluded the offenses would merge, but the minimum mandatory parole ineligibility for the lesser third-degree offense would be imposed on the greater second-degree offense that carries no parole ineligibility. Id. at 55.

In analyzing the question, the Court said: "[u]nder Blockburger, two offenses are the 'same' unless 'each [offense] requires proof of an additional fact [that] the other does not.'" Id. at 50-51. Applying this iteration of the test, the prosecutions in this case do not violate double jeopardy principles. Eluding requires proof of flight after a police signal to stop while creating a risk of death or injury, while operation in an unsafe manner means precisely that, except the lack of safety in operation can also include potential harm to property. This prosecution does not result in the type of fractionalization of prosecution that Blockburger was designed to prevent.

Reversed and remanded.